Received from Sandy Graham, DCC Group Manager Corporate Services
Friday, 16 January 2015 5:06 p.m.
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From: Sue Bidrose
Sent: Wednesday, 14 January 2015 3:59 p.m.
To: Lee Vandervis
Cc: Council 2013-2016 (Elected Members); Sandy Graham
Subject: FW: Non-notified ORC subdivision?
Hi Lee
Here is the Planner’s discussion about the Chalmers subdivision in the paper today. They have given generic information about how such decisions are made (to be notified or non-notified) and then how those principles stacked up in this specific case. They have then also addressed each of your specific attributes for this particular subdivision (size, political interest, transparency etc.) and how much impact that each of these can/can’t have on their decision-making around making the application notified/non-notified. I know you know much of this background Lee, but as you cc’d all Councillors, I wanted a generic response for Councillors who are not Hearings Panel members, so forgive my ‘teaching Granny to suck eggs’ approach.
Attached is also a couple of sketches that the planner (Lianne) made for herself showing the subdivision at the start of the process, and then at the end, just for your information for those of you who are interested in knowing exactly which lots were affected.
Regards
Sue
Dr Sue Bidrose
Chief Executive Officer
Dunedin City Council
[click to enlarge or view PDF immediately below]
█ Download: Chalmers subdivision diagrams (PDF, 1.0 MB)
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From: Jeremy Grey [DCC]
Sent: Wednesday, 14 January 2015 3:36 p.m.
To: Sue Bidrose [DCC]
Subject: FW: Non-notified ORC subdivision?
Hi Sue,
Please see below an email that Lianne has prepared in response to your query. I will also be sending some diagrams.
Please let me know if you need anything further.
Regards,
Jeremy
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From: Lianne Darby [DCC]
Sent: Wednesday, 14 January 2015 2:03 p.m.
To: Jeremy Grey [DCC]
Subject: RE: Non-notified ORC subdivision?
Hi Jeremy
In response to Sue’s questions:
1. All subdivisions require resource consent. This is not a suggestion that there is a fault with subdivision, but is simply a matter whereby Council maintains control i.e. makes sure there is access, servicing, the land is geotechnically stable, etc.
The District Plan sets out the criteria for subdivision within the different zones, and where a subdivision meets the criteria, it is usually processed non-notified. In the case of the Port 2 and Industrial 1 zones, subdivisions are expected to comply with Rules 18.5.3 (access), 18.5.4 & 18.5.4 (requirements for esplanade strips or reserves), 18.5.6 (service connections), 18.5.9 ( a rule which has since been deleted and no long applies), 18.5.10 (lots in unserviced areas) and 18.5.12 (structure plans). Some/most of these rules will not be relevant to specific proposals. It should be noted that there is no minimum area or frontage requirements for lots in these zones. A subdivision meeting all these rules is a restricted discretionary proposal. It is worth noting the final paragraph of Rule 18.5.1 which states:
“… any application for subdivision consent involving a discretionary activity (restricted), the written approval of affected persons need not be obtained.”
… that is, a land owner may subdivide in accordance with the expectations of the District Plan for the zoning without needing to consider others as affected parties.
Subdivisions which do not meet the above rules (unrestricted discretionary and non-notified activities) are often processed non-notified as well if the proposal involves no change in land use, the non-compliance can be mitigated, or there are no consequences for neighbours, the general public or the District Plan integrity. For example, in the residential zones, new lots require frontage. Many lots do not have any frontage at all and the subdivision is a non-complying subdivision as a result. However, these lots will have rights of way providing them with legal and physical access, so the lack of frontage is not considered of any consequence. We do not notify these applications.
As a general rule, subdivisions are notified when there is a breach of density i.e. the new lots are undersized and will result in development at a greater density than the zoning would anticipate. This has the potential to change the wider amenity of an area or overload Council’s services, among other matters. However, if the land is already developed, then the subdivision of the land into lots smaller than anticipated is not usually considered a matter of concern as there will be no actual change occurring except on paper. For example, a lot with two houses could be subdivided into two undersized lots, each containing a house, without the subdivision being notified.
Large subdivisions are not notified simply because they are large. If the subdivision is in accordance with the District Plan expectations, i.e. meets the relevant rules, it will not be notified. For example, the large Mosgiel residential subdivisions currently underway have not been notified except for Heathfield which involved a lot of undersized lots.
Planning does not take into account political or commercial interests when processing resource consents.
2. The subdivision of Chalmers Properties was non-notified for several reasons.
a) It meets the necessary requirements for subdivision in the Port 2 and Industrial 1 zone. Any deficiencies there may be in servicing (e.g. the need for individual water connections) will be addressed as part of the consent conditions, as is typical.
b) There is no new development proposed. The subdivision is not for the purpose of creating vacant sites for new development. This does not mean that the new lots cannot be redeveloped, but this is not the purpose of the subdivision; nor is redevelopment dependent on the subdivision. The existing sites can be redeveloped at any time should the property owner desire.
c) The subdivision is not so much a large subdivision as a number of small subdivisions all being put on the same plan. We are starting with 15 existing titles and finishing with 34.
d) The new lots have, by my understanding, been selected mainly to coincide with existing leases. Council does not have access to lease information and does not know who the leaseholders are (barring door-knocking). Council does not normally consider lessees or property renters as affected parties as the tenancies are private agreements. The subdivision of the freehold parcels should not have implications for the terms of any leases or leasehold titles.
e) Many of the existing titles are comprised of multiple sections. The original subdivision created many small parcels, and these have been grouped into freehold titles to give the 15 subject sites. Section 226 of the RMA allows a property owner to separate these parcels onto separate freehold titles if certain conditions are met. This is not a subdivision, and Council does not have discretion to say ‘no’ if the conditions are satisfied. Many of the new lots follow existing parcel boundaries and could arguably have been dealt with using s226. Given the number of titles being dealt with and the fact that some buildings might actually, when checked by survey, be over boundaries, the applicant decided to deal with them all by a formal subdivision at once; a one step process whereby any breaches of buildings over existing parcel boundaries will not cause the project to stall.
3. As noted above:
a) Size. The size of the subdivision is not a deciding factor in notification if the subdivision rules are met. In this case, the subdivision is not so much a large subdivision as a number of small subdivisions dealt with together. There is no change in land use anticipated as a direct result of this subdivision as there are already established land uses for the new sites.
b) Political implications: Council does not take into account political implications when processing resource consents. Consents are assessed on their merits and not according to who the applicant is or where it is situated. The zone is the relevant factor, not the neighbourhood or the history of the area.
c) Planning implications: There are no planning implications associated with this subdivision. The subdivision meets the necessary rules as set out by Rule 18.5.1(iv) for the Port and Industrial zones. There is no minimum site size set for the zones, so there are no undersized lots. All lots are serviced and have access. They are already developed with lawfully established activities. Any existing encroachments of buildings over boundaries will be resolved by this subdivision. The subdivision is a restricted discretionary activity.
d) Public interest: It is difficult to see how public interest is relevant in this case. The subdivision does not challenge the integrity of the District Plan in any way, and this is the public planning document being applied. The terms of all existing leases should not be affected (and this is a matter between the property owner and tenants anyway, not Council). There is no change to the sites occurring as a direct result of the subdivision. While the new lots may be sold and/or redeveloped, the land is in private ownership and can already be sold and/or redeveloped. Council does not decide whether or not a property owner can sell their land. Redevelopment proposals will be assessed by Council if and when they arise.
e) Commercial interest: Council does not take into account commercial interests when processing resource consents. The RMA sections 74(3) and 95D(d) instructs a consent authority to disregard trade completion or the effects of trade competition.
f) Transparency: The applicant is a private land owner who is entitled by the District Plan to undertake certain activities on their land. While subdivision is not a permitted activity, Council does not decline subdivision applications where the proposal is in accordance with the relevant subdivision requirements and the land is stable (i.e. section 106 of the RMA is not triggered). This is not Council land, nor Council’s project. The resource consent application and decision are public documents available for anyone to view, and in this regard, there is transparency about the proposal. It was decided for the above reasons that the proposal did not need to be notified.
The consent decision makes evident that there are a large number of addresses involved. In a nutshell, the property owner has a large number of addresses which do not fully align with leases, which do not fully align with freehold titles, which do not fully align with buildings on-site. The subdivision seeks to tidy up, or rationalise, the landholdings for ease of the property owner’s administration, as noted in today’s Otago Daily Times paper.
Regards
Lianne
——————————
From: Jeremy Grey [DCC]
Sent: Wednesday, 14 January 2015 8:43 a.m.
To: Lianne Darby [DCC]
Subject: FW: Non-notified ORC subdivision?
FYI…
—
From: Sue Bidrose [DCC]
Sent: Wednesday, 14 January 2015 8:11 a.m.
To: Jeremy Grey [DCC]
Cc: Sandy Graham [DCC]
Subject: FW: Non-notified ORC subdivision?
Hi Jeremy
Please read the Councillor email below about why the subdivision in today’s paper was done on a non-notified basis. I need details on this – is it possible (please read the details below) to do this today?
I need the details about:
1. Generically: how a planner decides notified vs non-notified – the things you are legally allowed to take into consideration generically, not specifically this case – what are the RULES and steps for making that decision
2. Specifically: how those rules were applied and steps taken in this specific case
Given my response to the Councillors is quite likely be shared reasonably widely, it might be useful in answering that first dotpoint for you to imagine you are writing a sort of ‘guide to the notification decision-making process’.
Thirdly, it would be also useful if you could tell me specifically on how each of the following issues is allowed to have weight in that decision of notification:
Size (of subdivision/change)
Political implications
Planning implications
Public interest
Commercial interest
Transparency.
Jeremy, if you could cc Sandy in your response please, as we will disseminate the answer and all relevant emails the way we do with LGOIMAs – and I suspect we could well get LGOIMAs about this also.
Thanks
Sue
Dr Sue Bidrose
Chief Executive Officer
Dunedin City Council
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From: [name redacted on forwarding to council staff]
Sent: Wednesday, 14 January 2015 7:53 a.m.
To: Sue Bidrose [DCC]; Sandy Graham [DCC]
Cc: (all councillors)
Subject: Non-notified ORC subdivision?
Dear Sue,
Why has the massive subdivision of 15 ORC properties into 34 lots [today’s ODT p4] been processed on a non-notified basis, given the size, political and planning implications, and public and commercial interest in this range of properties?
Notification is surely a necessary prerequisite for such a large range of subdivisions to be carried out in a transparent manner is it not?
Kind regards,
[name redacted]
[ends]
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Related Posts and Comments:
9.1.15 DCC: Non-notified decision for harbourside subdivision
27.12.14 Port Otago Ltd + Chalmers Properties
17.11.14 Bradken keen to sell Tewsley Street premises
12.6.14 Dunedin’s industrial land
18.3.14 Dunedin Harbourside: English Heritage on portside development
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